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Sunday, September 03, 2006

Liberal Hypocrisy on the “Living Constitution”

A year ago, Slate magazine’s legal correspondent, Dahlia Lithwick, recounted this observation - from one of her bounteously sophisticated liberal readers - as a neat summary of the “doctrine” of a “living Constitution.” And a neat summary it is. How droll and obtuse that conservatives think the Constitution should remain anchored against the tides of change while those currents bring with them torrents of newfangled iPods and ever-changing gusts of news; one day about Brittany Spears, the next day Paris Hilton. How very horse-and-buggy to suggest that the Commerce Clause wouldn’t change with the latest in slattern chic and personal electronics.

[. . .]

You do see the irony here, don’t you? A coalition of pressure groups - Greenpeace, the ACLU and a bunch of left-wing professors - are arguing that the Constitution must be immutably inflexible, adamantine in the face of changing times. The fact that al-Qaida is using new technologies the founders could never have imagined is irrelevant, say the absolutists. If the government can listen in on bin Laden’s phone calls without a warrant, what’s to keep them from listening to a phone call between me and my Aunt Sally?

Isn’t this just a bit hard to take with a straight face from the ACLU, which finds powers not created by the Constitution every day and periodically declares such inanities as the idea that the Constitution forbids teachers from reading “The Chronicles of Narnia” in class lest the tykes’ young minds be corrupted by hidden messages about Christianity? Such concerns would have left the founders dumbfounded before the opening prayers of the Constitutional Convention.

But, you might ask, aren’t traditional opponents of the living Constitution hypocrites? Liberals normally like their penumbras emanating and their Commerce Clause written in Silly Putty while we conservatives like our Constitution like our beef jerky - cold, dead, tough to chew through. So aren’t conservatives using a double standard, too?

It may depend whom you’re talking about, but I think not. Long before the concept of a living Constitution was hatched, the authors of the original version - as well as the courts interpreting it - understood that the executive branch has the authority and flexibility to conduct foreign policy and wage war. Terrorists may be criminals, but they aren’t merely criminals. They’re waging war against us and doing so in ways never imagined by the founders. They don’t want territory or treaties, and they don’t use armies and cannons. They want to make our own technology and freedoms into weapons they can use against us.

And so here is the real absurdity of the “living Constitution” school. Where the Constitution is supposed to be inert, they want it alive and mutating. But where the Constitution was intended to be flexible, intellectual rigor mortis has set in.

Of course, even a casual reading of the Constitution shows the executive as having rather exceptional powers where national security is concerned. For example, the Constitution says that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” And executives have been known to impose martial law when faced with public disorder. This was an accepted executive power at the time of the Founding, and although Lincoln’s use of martial law remains highly controversial, it’s clear that the power to impose it continues to reside in executives.